REPORTS & ESSAYS
What’s at Stake in the Triple Talaq Case?
August 22, 2017
Can “personal laws” that violate any provision of the Constitution, including the right to equality and non-discrimination based on sex, be declared unconstitutional? Or is there something inherent to them that makes them immune to the discipline of fundamental rights? This is the question that was raised in the challenge to Triple Talaq by the Bebaak Collective and the Centre for Secular Studies, during the recently concluded hearing of the case.
If the answer to this question is that they cannot be challenged, it will have huge implications for the women of this country and all family laws that discriminate against women will continue to bind them in perpetuity. This would be a very dark prognosis for the law, since several personal laws of all communities do actually discriminate against women. Triple Talaq is just one glaring example of this form of discrimination based on sex, where the husband can unilaterally terminate a marriage with no accountability to anyone for the cause or the consequences of the termination of a marriage. Many Muslim women have explained how they do indeed live in constant fear of the dreaded words, not knowing when they will be shown the door. The irony is that under Muslim law, marriage is a contract entered into by two people with free consent, and yet, it is claimed that such a marriage can be terminated unilaterally with no consequences for the husband. Does such a law meet the constitutional requirement of equality and equal protection of laws? Does it pass the test of non-discrimination based on sex?
This question has been plaguing the women’s movement and the Courts since the 1950s and has never been resolved. The court has been presented with several opportunities to decide the issues, but has consistently dodged the responsibility on each occasion.
Let us begin with the Syrian Christian law. Mary Roy challenged the discriminatory inheritance law which gave Syrian Christian Women Rs. 5000 or 1/4th the value of the share of the son, whichever was less. Her challenge was that the law discriminates between a Syrian Christian son and daughter. There can be no question that it does. Mary Roy found out when she returned to her natal home from a broken marriage, her brother, who claimed that he was the sole inheritor of all the properties of their father, threatened her with dispossession and homelessness. It is then that she decided to go to court and challenge the law. The Syrian Christian community based in Kerala itself is very prosperous and owns landed property. The necessary implication of this is that she would not get any property from her father and have to leave the natal home. It was then that she decided to challenge the law in the Supreme Court on the ground that it discriminated against daughters in favour of sons and that this discrimination was based on sex alone. How did the Supreme Court deal with the issue?
It did not answer Roy’s question, but instead, held that after the coming into force of the Part C States Act, the laws in force in the former territories of the princely state of Travancore ceased to have effect. Therefore the Indian Succession Act 1925 would apply to Syrian Christian women under which a daughter and a son would get an equal share of inheritance. An equal outcome was achieved but not through the Constitutional route.
Next, let us look at the Hindu Guardianship Act 1956. Section 6 of the act reads as follows:
6. Natural guardians of a Hindu minor.—The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are—
(a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father;
(c) in the case of a married girl—the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section—
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.—In this section, the expression “father” and “mother” do not include a step-father and a step-mother.
By any reckoning, this section is patently discriminatory against women, namely the mother. Githa Hariharan and Vandana Shiva have asked why the mother is not the natural guardian? Githa wished to deposit a certain sum of money into RBI bonds in the name of her son. The Bank refused to accept the money on the ground that the form was not signed by her husband and he was the natural guardian.
Vandana Shiva while fighting a custody battle with her husband, who tried to deny her custody on the ground that he was the “natural guardian”, was constantly told by her husband he would not allow her the custody as he was the natural guardian.
She asked me, “Why is it that all responsibility to bear and rear the child is mine, but all the rights are my husband’s?”
The case went to the Supreme Court on the contention that Section 6 must be declared unconstitutional as it was patently discriminatory. What did the court do? It did not declare the section unconstitutional. It interpreted the words “and in his absence” to mean not after the death of the husband, but in the event of his neglecting the child, the mother would be the natural guardian. In Githa Hariharan v. Reserve Bank of India [(1999) 2 SCC 228] it was observed by the Supreme Court:
10. We are of the view that Section 6(a) (supra) is capable of such construction as would retain it within the constitutional limits. The word “after” need not necessarily mean “after the lifetime”. In the context in which it appears in Section 6(a) (supra), it means “in the absence of”, the word “absence” therein referring to the father's absence from the care of the minor's property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognized natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of a harmonious construction of Section 4 and Section 6 of the HMG Act, without causing any violence to the language of Section 6(a) (supra).
The fundamental issue was circumvented with an interpretation intended to dodge the issue of discrimination, and yet give the appearance of justice being done. The section remains on the statute book until today. No government has thought it fit to repeal it. As for being disabled from being a guardian on ceasing to be a Hindu, this flies in the face of the fact that the Special Marriages Act 1955 enables a Hindu to enter into a valid marriage with a non-Hindu. Hence the question would be, why should the form in which you marry matter to the issue of guardianship and custody of the children? After all, children too have the right to decide for themselves which religion they wish to follow, if any at all.
In the now famous Danial Latifi case, the Muslim Women’s Protection of Rights Upon Divorce Act 1986 (“MWPRDA”) was challenged on the grounds of it being discriminatory towards Muslim women as it denies them the right to seek maintenance under Section 125 of the CPC. Interpreting the Act, the court held that under the Act, a Muslim husband was obliged to pay a “reasonable and fair provision” during the iddat period. Hence, it was concluded that Muslim women have rights akin of other women, although not the same rights. The court observed that any other interpretation would render the section unconstitutional. This is the closest the court has ever come to acknowledging that a personal law could be unconstitutional.
“33. …It is well settled that on a rule of construction in a given statute will become ultra vires or unconstitutional and, therefore, void, whereas another construction which is permissible, the statute remains effective and operative the court will prefer the latter on the ground that Legislature does not intend to enact unconstitutional laws. We think, the latter interpretation should be accepted and, therefore, the interpretation placed by us results in upholding the validity of the Act. It is well settled that when by appropriate reading of an enactment the validity of the Act can be upheld, such interpretation is accepted by courts and not the other way.”
Then let us look at the Madhu Kishwar case which challenged the tribal law under which a tribal woman who marries outside her tribe is disallowed from inheriting ancestral land. Again, one could be certain that this law is unconstitutional. But the court did not strike it down. In an evading move, the court held that it was for the Parliament to deal with in the following words:
“6. With regard to the statutory provisions of the Act, he has proposed to the reading down of Sections 7 and 8 in order to preserve their constitutionality. This approach is available from p. 36 (paras 47, 48) onwards of his judgment. The words “male descendant” wherever occurring, would include “female descendants”. It is also proposed that even though the provisions of the Hindu Succession Act, 1956 and the Indian Succession Act, 1925 in terms would not apply to the Scheduled Tribes, their general principles composing of justice, equity and fair play would apply to them. On this basis it has been proposed to take the view that the Scheduled Tribe women would succeed to the estate of paternal parent, brother or husband as heirs by intestate succession and inherit the property in equal shares with the male heir with absolute rights as per the principles of the Hindu Succession Act as also the Indian Succession Act. However much we may like the law to be so we regret our inability to subscribe to the means in achieving such objective. If this be the route of return on the court's entering the thicket, it is far better that the court kept out of it. It is not far to imagine that there would follow a beeline for similar claims in diverse situations, not stopping at tribal definitions, and a deafening uproar to bring other systems of law in line with the Hindu Succession Act and the Indian Succession Act as models. Rules of succession are indeed susceptible of providing differential treatment, not necessarily equal. Non-uniformities would not in all events violate Article 14. Judge-made amendments to provisions, over and above the available legislation, should normally be avoided. We are thus constrained to take this view, even though it may appear to be conservative for adopting a cautious approach, and the one proposed by our learned brother is, regretfully not acceptable to us.”
This is also what Justice G.S. Singhvi did in the challenge to Section 377:
“45. Applying the aforestated principles to the case in hand, we deem it proper to observe that while the High Court and this Court are empowered to review the constitutionality of Section 377 IPC and strike it down to the extent of its inconsistency with the Constitution, self-restraint must be exercised and the analysis must be guided by the presumption of constitutionality. After the adoption of the Penal Code in 1950 (sic 1860), around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 IPC belongs. The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate. However, the legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India not to challenge in appeal the order of the Delhi High Court, Parliament has not made any amendment in the law. While this does not make the law immune from constitutional challenge, it must nonetheless guide our understanding of its character, scope, ambit and import.
46. It is, therefore, apposite to say that unless a clear constitutional violation is proved, this Court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need.”
In both cases, there has been an abdication of the Constitutional authority of the Court, since it can be shown that in both cases there was a “clear constitutional violation”.
The Bull in the China Shop
Let us look at one more judgment of the Delhi High Court in Smt. Harvender Kaur v. Harmander Singh Choudhry [AIR 1984 Del 66]. A grievance against the provision of restitution of conjugal rights was called into question, citing its unconstitutionality as it would force a woman to return to her husband against her wishes, and she would be in danger of being raped or getting pregnant. The Court in no uncertain terms said that introducing Constitutional Law into personal laws was like introducing a “bull in a china shop”:
“34. One general observation must be made. Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Article 21 nor Article 14 have any place. In a sensitive sphere which is at once most intimate and delicate the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond. That the restitution remedy was abolished in England in 1970 by Section 20 of the Matrimonial Proceedings and Properties Act, 1970 on the recommendation of the Law Commission headed by Justice Scarmann is no ground to hold that it is unconstitutional in the Indian set-up.”
In Saroj Rani v. Sudarshan Kumar Chadha (1984) 4 SCC 90 the Supreme Court accepted the reasoning of the Delhi High Court judgment. Justice Sabyasachi Mukherjee speaking for the Court observed:
“13. Having considered the views of the learned Single Judge of the Andhra Pradesh High Court and that of learned Single Judge of Delhi High Court, we prefer to accept on this aspect namely on the validity of Section 9 of the said Act the views of the learned Single Judge of the Delhi High Court…”
The Harmindar Singh argument would disable any potential challenge to the marital rape exception in the Indian Penal Code.
It is in this context that the question arose whether the court would allow the Bull in the China Shop in the case of Triple Talaq?
Counsel for the Bharatiya Muslim Mahila Andolan (BMMA) had argued that the Court ought to declare the practice of Triple Talaq un-Islamic, and that in any event, several courts had held that Triple Talaq could not be granted in one breath. It had to be in three different months and accompanied by attempts at reconciliation, and only on the third procumbent would it become irrevocable. Could this be a solution to the problem of discrimination based on sex? Assuming that reconciliation preceded the irrevocable nature of the talaq, if reconciliation failed, the talaq would go through. The point here is not that there should be no talaq at all, but that the procedure by which it obtained and the conditions on which it goes through must be non discriminatory and consistent with the right to dignity and equality for the woman. A unilateral declaration of talaq with no judicial oversight does not satisfy these conditions. Hence the question will remain, is triple talaq unconstitutional? The Court should no longer dodge the issue in relation to any personal law that violates the right to equality and non-discrimination based on sex.
Stand of Bharatiya Muslim Mahila Andolan (BMMA)
Under Islamic Law Divorce is of primarily three types. Talaq, which comprises of modes of divorce at the instance of husband. Khula, which is divorce at the instance of the wife and third is Mubarat, which is mutual consent divorce.
Talaq itself is of three types. These are Talaq Ahsan and Talaq Hasan, both of which are approved by the Quran and Hadith and the third type which is Talaq-i-Bidat, which is neither recognized by the Qurantype that is Talaq-i-Bidat, which is neither recognized by the Quran nor the Hadith. The present petitions are concerned exclusively with the third of these three sub-sets of talaq, which is talaq-I bidat.
Talaq bid’a/ bidaat (not approved is instantaneous divorce). This form is not permitted by either the Quran the Hadith and is in fact contrary to quran prescriptions. This practice can be traced to 2nd Century after the advent of Islam and is sought to be recognized only by few Sunni schools- the Hanafis most prominently. Even these schools that seek to recognize it, claim it as a sinful form of divorce and seek to justify it on the ground that “it is bad in theology but good in law”. Talaq-i-bidat is also of two kinds- Uttered in one definitive talaq pronouncement such as “I talaq you irrevocably” or three simultaneous pronouncements i.e. “talaq, talaq, talaq” at one go, the divorce is said to be effected instantaneously and irrevocably. While both the types of talaq-i-bidat are colloquially referred to as triple talaq, the same is a misnomer because of two reasons. First, because Talaq-i-bidat can be effected by either three pronouncements or one pronouncement, as explained above. Second, because even Talaq Hasan has three pronouncements, the difference being that in case of Talaq Hasan these three pronouncements are interspersed in three 30 days periods, over a total of 90 days. Thus, the correct terminology for Talaq-i-bidat is instantaneous talaq and not triple talaq, which is a misnomer.
In fact, the introduction of instantaneous talaq as a valid form of talaq in personal law applicable to Indian Muslims was on account of the acceptance of this concept by certain courts in British India, without fully examining the Koran or Hadith. These courts in cases such as Rashid Ahmed v Anisa Khatun, (1932) 59 IA 31 (Privy Council) accepted instantaneous talaq on the ground that certain schools considered it “bad in theology but good in law”.
After the adoption of the Constitution in India, various High Courts have considered this aspect of whether this understanding, that instantaneous talaq is “bad in theology but good in law” is acceptable in light of the quranic injunctions and hadiths and have also reassessed the whole concept of instantaneous talaq as also divorce generally under Muslim Personal Law.
One of the earliest such decisions was A. Yusuf Rather v. Sowramma, AIR 1971 Ker 261, wherein in the context of Khula (divorce at the instance of wife) Krishna Iyer J. questioned some of the views taken by British Courts on Muslim personal law, as being based on an incorrect understanding of Muslim Personal Law. Subsequently, in two different judgments of Guwahati High Court, after detailed examination of the Quranic verses, it has been held that capricious and arbitrary unilateral divorce by a Muslim male in the form of talaq-i-bidat is not permissible under Muslim Personal Law.
There are two streams of decisions by Courts that has completely clarified the legal position in respect of instantaneous talaq. One set of decisions have culminated in the decision of Shamim Ara v. State of U.P & Another, (2002) 2 SCC 518, wherein the Supreme Court has approved the decisions of various High Courts that have held that:
1. That a Muslim husband does not enjoy an arbitrary, unilateral power to proclaim a divorce and the same does not accord with Islamic traditions, and
2. That any proclamation of talaq must be for a demonstrated reasonable cause, and
3. That a talaq must be preceded by an attempt at reconciliation, by two arbiters, one each from the side of the married parties.
The Shamim Ara judgment settled the law that no form of Muslim Talaq can be considered valid if it is not proved with clarity that it was for a reasonable cause and all the preceding attempts at resolving and reconciling differences were carried out before the pronouncement was made.
Further, the pronouncement itself as well as its communication to the wife required convincing proof. Subsequent assertions in pleadings of a divorce pronounced in the past as it were, was unacceptable. This ruling was by itself a guard against a spur of the moment divorce. It laid to rest the position taken by some schools that even an instantaneous talaq proclaimed in a state of intoxication or anger or in jest was valid.
The other set of decisions have taken the issue of instantaneous talaq frontally, directly and exclusively. These set of decisions have held that talaq by the Husband in one sitting whether through a single irrevocable pronouncement or through three simultaneous pronouncements does not have the effect of granting divorce to the wife. In Masroor Ahmed v. State (NCT of Delhi), 2008 (103) DRJ 137, the High Court of Delhi (Justice Badar Durrez Ahmed) has after examining the whole conspectus of Muslim personal law and judicial decisions in this respect held that talaq-i-bidat / triple talaq will have the same effect as talaq ahsan and thus has lost its instantaneous nature, as also its irrevocable nature. Thus, even when instantaneous talaq is pronounced it will not immediately effect divorce and operate only as talaq-i-ahsan, which is reasonable and not even under challenge in the present proceedings.
The upshot of these decisions is that by a purely interpretative exercise, the courts in India have already rendered instantaneous talaq in one sitting as ineffective. When read along with the Shamim Ara line of judgments, the clear and crisp legal position that emerges is that:
1. The unilateral pronouncement of talaq in one sitting either through single irrevocable pronouncement or through three repetitions of the word talaq does not have the effect of granting divorce.
2. Even if three talaqs are pronounced at one time they must be treated as a single revocable talaq which can be revoked during the mandatory iddat period of three lunar months;
3. That any proclamation of talaq must be for a demonstrated reasonable cause
4. That a talaq must be preceded by an attempt at reconciliation, by two arbiters, one each from the side of the married parties.
The above legal position that clearly emerges is fit for adoption and declaration by the Supreme Court as it renders instantaneous talaq and its arbitrary nature ineffective and is also fully consistent with the constitutional provisions.
A declaration by the Supreme Court that the applicable rule of decision under Section 2 of the Sharia Act of 1937 does not permit instantaneous talaq is sufficient for the decision of the present case and would have the automatic effect of rendering illegal instantaneous talaqs amongst all muslims in India.
For written submissions of Mr. Anand Grover, Senior Advocate representing the BMMA please click here.
Can Freedom of Religion trump the right to equality and non-discrimination based on sex?
So why have the courts fallen shy of declaring any personal law unconstitutional?
To answer this question one will have to look at the arguments of the All India Muslim Personal Law Board (AIMPLB).
Stand of the All India Muslim Personal Law Board (AIMPLB)
Personal law represents matters of faith continued for centuries having a direct relationship to the faith of the community representing a religious denomination. Such matters of faith span the life of a person with reference to the family and the community to which he or she is a part of.
The evolution of matters of faith relating to religious practices is to be judged in the context of recognition of those practices by the community over centuries. An individual’s thought and action inconsistent with such practices cannot be the basis of determining matters of faith.
Societies of different faiths are essentially patriarchal. This is true of all faiths, Hindus, Christian, Islam, Parsi, Zoroaster, Buddhist etc. There are very few exceptions to this. Reform through codification of such faith binds all individuals within the community. This process is evolutionary. Absent such law, faith is the arbiter of individuals belonging to the community and practicing a particular faith.
The Constitution of India recognizes ‘personal law’ of all religious denominations being communities and protects their faith by making them immune from challenge under Part III of the Constitution. This is evident from judgments such as State of Bombay v. Narasu Appa Mali (AIR 1952 Bom 84) and Krishna Singh v. Mathura Athir (1981) 3 SCC 689 where the courts have held that personal laws are not subject to challenge under Part III of the Constitution. ‘Personal law’ stands excluded from the definition of ‘law in force’ in Article 13 and thus all matters of faith having a direct relationship to a religious denomination being matters of personal law cannot be tested on the anvil of Articles 14, 15, and 21 of the Constitution of India.
In any event, even when the legislature has enacted laws, such as in case of the Hindu Marriage Act,1955 customs contrary to the Act have been specifically protected by Section 29 (2) of the Act. In fact by virtue of Section 2 of the Act, the Act has been made inapplicable to Scheduled Tribes. Customs contrary to legislations have been saved by the Courts and thus similarly personal laws shall also be protected.
Further, reference to Article 26 (b) of the Constitution gives the freedom to every religious denomination to manage its own affairs in matters of religion. This also indicates that Constitutional mandate is for Courts to protect matters of faith and allow the religious denomination to manage its own affairs in matters of faith.
All arguments made on grounds of discrimination that the right to 'Talaq’ is unilateral at the instance of the man in a marital relationship begs the question. ‘Personal law’ cannot be tested on grounds of discrimination. Such a test can only be applied when such ‘personal laws’ are deemed to be ‘laws’ under Article 13 of the Constitution.
It is also clear from Article 371 A of the Constitution in respect of the State of Nagaland wherein it is set out that no Act of Parliament in respect of religious and social practices of Nagas and other matters referred to therein shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by resolution so declares. This principle is also enunciated in Article 371 G which applies to the State of Mizoram wherein too it is set out that no Act of Parliament in respect of religious or social practices of the Mizos along with other matters stated therein shall apply unless the Legislative Assembly of State of Mizoram by a resolution so decides.
The Constitutional scheme, therefore, suggests that whenever elected Members of Parliament or a Legislative Assembly were to make a law codifying such religious and social practices then alone would such law be enforceable through courts of law and their constitutionality under Part III of the Constitution can be tested. Similar protection has been accorded to personal laws (including Muslim Personal Laws that includes triple talaq) by their exclusion from the definitions of “law” and “laws in force” in Article 13 of the Indian Constitution.
Triple Talaq is a part of the faith of Hanafi school. Imam Abu Hanifa, who himself did not record his own understanding of what the Prophet said in writing, however, had two disciples who immediately upon his death in writing recorded what he had said about Triple Talaq. Imam Abu Hanifa’s disciple, Imam Abu Yusuf in his book entitled as “Ikhtilaaf Abi Hanifah wabni Abi Laila” [First Edition, 1357] stated the following on the Triple Talaq:-
If the man said to his wife, "Your matter is in your hand”, she said, "I have divorced myself three times”. Abu Haneefah (may Allah be pleased with him) says: “If the husband intends three times, then it is three”.
Many women belonging to the Hanafi school who accept Triple Talaq as a valid form of divorce cannot be as a matter of law be denied the consequences thereof. Such belief of women should not be interfered with and cannot be set at naught through a judicial pronouncement, the consequence of that would be what as a matter of faith is valid in law with legal consequences within the faith will create societal complications to such women. It is, therefore, clear that Triple Talaq for the Hanafis, a religious denomination is a matter of faith.
The essential purpose of the Act of 1937 was to ensure that all those customs and practices which were contrary to Islam but being followed by those who embraced Islam should be discontinued and declared to be contrary to Islam. This is made not only clear from the objects and reasons of the Act of 1937 but also the language of Section 2. The Act of 1937 is neither an attempt to codify the ‘personal law’ of Muslims in India nor does it represent a statutory enactment of ‘personal laws’ of Muslims in India.
As far as the right of the woman to obtain Khula is concerned, that is again a matter that is determined through mediation through the Qazi. In many instances, the woman is able to obtain Khula, because the husband accepts the mediation of the Qazi. The wife can seek Khula from the husband directly before even going to the Qazi. If the husband agrees, no further act is required. Apart from that, the wife can also seek divorce under the Dissolution of Muslim Marriages Act, 1939 (Act of 1939) through appropriate Civil Courts in India.At the time before entering into a marital relationship, Muslim women have several options before them: –
(i) to persuade the suitor to have their marriage registered under the Special Marriage Act, 1954.
(ii) to negotiate in the Nikah Nama and include provisions therein consistent with Islamic law to contractually stipulate that:
• husband does not resort to Triple Talaq,
• delegate the right to herself pronounce Talaq (in all forms), and
• ask for very high mehr amount in case of Talaq and impose such other conditions as are available to her in order to protect her dignity.
For written submission of Mr. Kapil Sibal, Senior Advocate representing the AIMPLB please click here.
Their case is that the right of a Muslim husband to pronounce triple talaq is protected by the right to freedom of religion in Article 25 and 26 of the Constitution.
Article 25 and 26 of the Constitution read as under:
“25. Freedom of conscience and free profession, practice and propagation of religion.-
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law–
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I. – The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II.- In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
26. Freedom to manage religious affairs.-
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right-
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.”
This was the challenge: are personal laws protected by religion?
What are personal laws?
To answer this question, one must understand the meaning of “personal laws”.
There is no definition of personal laws in the Constitution, except that there is a reference to it in the Seventh Schedule at Entry 5, List III, which reads as:
“5. Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.”
In the aforesaid matters, Muslims were governed by the Sharia before the commencement of the Constitution by virtue of The Muslim Personal Law (Sharia) Application Act 1937. The said Act was the “law in force” within the meaning of Article 13(3) (b), and Article 372 of the Constitution of India. Section 2 of the Sharia Application Act 1937 reads as:
“2. Application of Personal Law to Muslims. — Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and waqfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”
A reading of Entry 5 of List III makes it clear that personal law is law regulating marriage and divorce, infants and minors, adoption, wills, intestacy and succession, joint family property and partition etc.:
Hence there is no doubt about the fact that matters relating to family, marriage and divorce are described as personal laws .
The subject matter of personal laws in the present context is what is commonly described as Family Law, and disputes relating to family law are now adjudicated by Family Courts set up under the Family Courts Act 1984. The explanation to section 7 of the Family Courts Act which describes the jurisdiction of the court reads as under:
“Explanation -The suits and proceedings referred to in this subsection are suits and proceedings of the following nature, namely:
1. a suit or proceeding between the parties to a marriage for decree of a nullity marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
2. a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
3. a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
4. a suit or proceeding for an order or injunction in circumstances arising out of which a marital relationship;
5. a suit or proceeding for a declaration as to the legitimacy of any person;
6. a suit or proceeding for maintenance;
7. a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor”
Hence we reach the conclusion that in the context of the present controversy, “personal laws” are nothing but family laws. It may be noted that Muslim women can approach a Family Court for a divorce and for any other matrimonial relief; as can all other women. Once the court is approached, the law applicable to that particular community will apply, but the adjudication will be by a civil court. The question here to which we will come back is, if the applicable law is itself discriminatory, can it be challenged? In my opinion, yes, regardless of the fact that it applies to Hindus or Muslims or any other community.
Plural legal systems
But if personal laws are nothing but family laws, then why then are they called “personal laws”? For the simple reason that the fundamental rights under plural legal systems operating in the territorial unit of India and different communities are governed by different laws. Article 13 of the Constitution is clear, any law can be challenged on the ground that it violates fundamental rights.
How and why did this system of applying different laws to different religious communities originate?
During the British rule, the Bengal Regulation 1772 stated quite clearly that in all matters relating to marriage, divorce, succession, muslims will be governed by Muslim law and Hindus by Hindu law. This was to the arrangement that the colonial and political dispensation made intended to keep both communities happy to enable colonial rule. The origin of the system is purely political. This argument is reinforced by the fact that in Goa, which was not ruled by the British, this rule of decision does not apply. Yet despite this Regulation, several laws relating to Hindus and Muslims were changed by legislation, it being the only route to change since fundamental rights did not exist. The Constitution of India, when enacted, said in Article 372 that all laws in force before the Constitution would continue to be the law of the land. One of the laws in force was the Sharia Application Act 1937 which said that in matters relating to marriage etc., the rule of decision would be the Sharia. The said law was “law in force" before the constitution came into force, and continued to exist thereafter. However the question is, can such laws be challenged after the Constitution has come into force?
Are family laws protected from challenge on the ground of freedom to practice and profess religion?
Arguing for the AIMPLB Mr. Kapil Sibal asserted that they are protected and could not be declared unconstitutional. In a classic attempt to protect triple talaq, he said, “the problem is not religion, it is patriarchy”, as if the two could be magically separated from each other. When faced by the plain words of Article 25, to the effect that the State could make laws for social reform, he argued that such an exercise could only be undertaken by the legislature and not by the Courts.
His argument begs the question, if personal laws are protected by religion, and yet could be altered by Parliament, why could they not be declared unconstitutional? And if personal laws were protected by the right to freedom of religion, why could they be abolished or altered by the Parliament? The embargo which according to him applied to the Courts, namely the protection of freedom of religion, would apply equally to Parliament. There was no answer to this question.
The interrelationship between the freedom of religion and equality
So let us look a little more closely at the right to freedom of religion.
Firstly, it is a freedom which vests in an individual and not in a community.
Secondly, it is explicitly made subject to the other provisions of the Constitution, as well as to public order or morality.
Thirdly, there are some practices “associated” with religion, which are secular or economic or financial or political in nature which are capable of being changed.
We will have to consider the question whether marriage is a social institution with economic consequences and not a religious institution.
No court has defined what is religion but they have devised tests for what is not an essential part of religion. Indian courts have devised a test to ascertain whether a particular practice claimed to be a religious practice can be altered or not. Courts look at whether the practice in question is an “essential feature” of the religion or not. If it is, it cannot be disturbed, but if it is not, then it may be altered. The test of an essential feature is, whether you would cease to be a Muslim if you did not practice that feature .When it came to triple talaq, the argument of the AIMPLB was that it was a “sinful”, practice. “Bad in theology good in law" is what was picked up from a Privy Council decision and argued in court. The court asked, “If it is sinful, how can it be essential?” No answer from the Board was forthcoming. Obviously, the practice then is not an essential part of religion and can be therefore be altered by the State or declared unconstitutional. Most importantly, if something is bad in theology how can it be protected as part of the right to freedom of religion? To say something is not an essential part of religion is obfuscation. What the Court is actually saying is, it is not part of religion and hence not protected by the freedom to practice religion.
This argument that marriage is not a religious institution could be met with a possible objection, that since the marriage is performed in a religious form; it is in fact a religious institution. Every religion may prescribe the form of marriage to make it a valid marriage recognised by law, but that does not make marriage itself a religious institution, or part of religion. That would be to confuse the issue of validity of marriage with its consequences, which are in any case determined by law. The institution of marriage has been loosely defined as “a union between two persons”, and the law defines the rights and obligations attached to that union. The question here would be, if the legal consequences of a marriage as defined by law are discriminatory, could they be challenged or would they be protected as being part of the right to profess and practice religion?
The expression “religious laws” is an oxymoron. If something is part of religion , it cannot be law; it can only be protected as a freedom. On the other hand if something is “law” notwithstanding that it is or may be based on a religious source, once it is recognised and enforced by the State, it is a law and not a religion. The more appropriate expression in its place would be “laws governing people who belong to a particular religion”. This formulation makes it clear that it is laws we are talking about and not religion, and that such laws could be challenged by those who they bind Once it is law and enforceable as such, it becomes part of public policy. In a Secular State, religion cannot be enforced by the State. It is only in a theocratic state that religion itself can be directly enforced by Sharia courts. Anything which is enforced by the State is law. Hence any law codified or uncodified, custom or practice which is recognised by the State as having legal consequences is law and not religion.
Assuming for a moment, that personal laws are religious laws and hence covered by the protection of Article 25, the said article itself makes that freedom subject to the other provisions of the Constitution, including the right to equality, public order and morality. It is obvious therefore that the freedom of religion must be reconciled with the guarantee of equality. No part of the Constitution can destroy another part or trump another part. Equality matters while answering this question.
That brings us to the question, is triple talaq a practice “associated” with religion? Article 25 itself is very carefully drafted. It makes a distinction between religion and practices of a secular, economic or financial nature “associated” with religion. At best it can be argued that triple talaq is a practice of a secular or economic or financial nature “associated” with religion. The Article makes it clear that any such practice can be altered as a measure of social reform. The question then becomes, if Parliament can alter such a practice, why can the courts not declare it unconstitutional? There is no answer to this question, since courts can obviously declare any practice enforced by law unconstitutional.
Approach of the Court
The question then becomes, should the court still take a hands-off approach and depend on the affidavit of the Board which says they will “discourage” triple talaq and instruct qazis to counsel women to add a term in the nikahnama that the husband will not give a triple talaq? A man can still say he does not agree to such a clause obviously, the Board itself has no power to enforce such a clause. Should the Court accept the solution offered by the Board of “social boycott” of a man who gives triple talaq? This, in my opinion, would be to compound one illegality with another illegality. Or should the court simplify declare it unconstitutional?
The court obviously has several options:
(1) to avoid answering to the question and allow parliament to do what it wants to do; or
(2) to declare it un-Islamic and leave the Constitutional question aside; and / or
(3) to declare it unconstitutional.
We will soon know which option the Court will adopt.
Representation of women in public office, tribal customs
The matter goes beyond family laws. We have all recently witnessed an agitation in Nagaland against women contesting Municipal elections. It was argued by the tribal elders that this went against the customs as women cannot occupy public office. Giving in to this argument, a law enabling women to contest for reserved posts was postponed by the government due to the intervention of tribal elders. The postponement was upheld by the High Court. A petition challenging the judgment is now pending in the Supreme Court and Naga Mothers, who went to court in the first place, are being forced to withdraw the petition. Such is the devastating impact of stating that personal laws, customs and traditions cannot be challenged in court, or altered by legislation.
The test for determining whether the courts should intervene
Indigenous communities all over the world have their laws protected. Yet this is never an absolute protection. In Alexkor Ltd and Another v Richtersveld Community and Others [2004 (5) SA 460 (CC)] decided on 14 October 2003 by the Constitutional Court of South Africa, a question arose whether a tribal custom that violates the Constitution can be upheld, to which the court replied that the constitution must be given primacy over other laws.
“The court held that the test for the validity of indigenous law is no longer consistency with public policy and natural justice, but consistency with the Constitution.”
This then is the universally accepted test, not whether the practice has been in existence 1400 years but whether it was consistent with the Constitution.
Secular countries recognise only secular courts
So why is it so important to raise the constitutional issue? There is not a single “personal law” which does not violate the right to equality. Hence, either the Constitution has something to offer to women or it has fallen short in the field of family laws. Should these disputes go to a secular civil Court or to a Darul Qaza? As, mentioned earlier, India being a secular state has one unitary system for courts and we do not have Sharia courts.
It is important to introduce the Constitution into this discourse. Why is it important that we do not give Darul Qaza the right to pronounce divorce? At the heart of the Triple Talaq case is the battle for a secular framework for dispute resolution. Secular courts cannot enforce theocratic religious laws; we are not a theocracy, we are a secular democracy. Today, Darul Qazas can pronounce a talaq. Why can’t pundits pronounce a Hindu divorce and a priest a Christian divorce in the future? What then is the difference between an Islamic State and the Indian Secular State?
Hence to allow Darul Qazas to decide matrimonial disputes would be to being in a theocratic State through the back door.
The 'Slippery slope' argument
In the final analysis, we heard Mr. Kapil Sibal raise an argument of alarm. You are on a “slippery slope”, he said, meaning thereby that declaring triple talaq unconstitutional today would mean a license for entering the domain of religion , for example, telling the Christians that they would have to cremate their dead and bury them — an example actually given in court—and so on. All the five judges belonged to five different religions, and an argument of alarm was made in relation to all the five religions.
But there is another “slippery slope”: if you shut out the Constitution for women, one half of the Indian humanity would not have the guarantee of equality in the matter of family laws.
It was a “slippery slope” on both sides. The judges would have to walk the razor's edge, deciding in each case, which practice was unconstitutional and which was protected. In all Constitutional regimes of the world, opposition to the rights of women is based on religious grounds as in the case of the “pro-life” groups who oppose the right to abortion. Must the courts give in to such objections?
It has been suggested most recently by Mr. Kapil Sibal that what is at stake is not unilateral talaq itself (he actually said in Court, women have no objection to triple talaq, leading to a howl from all women present in court), what they want is economic rights within marriage and divorce. True, but where is the contradiction between the right to equality and economic rights? The demand for equality only reinforces the demand for economic rights. A marriage which has ended must end, but with dignity and mutual consent, and in the absence of consent, a regular civil court must decide the terms of separation.
The judgment will have consequences for all women not just Muslim women. It is tragic that there was not a single woman on the Bench, although male judges of five different religions were represented on the Bench. Whichever way the judgment goes, it will not be the end of the line for the discussion on the perceived conflict between equality and freedom of religion.
One is not blind to the politics of the country and the rights of the minorities while intervening in court. Yet this was not just a case dealing with minority rights, women were the minority within the minority and they were in court challenging the practice of triple talaq.
The courts provide a democratic and open space for debating these issues which refuse to go away. To abandon this space would be nothing short of a tragedy. This is why the Bebaak Collective led by Hasina Khan and the Centre for Secular studies led by Irfan Engineer intervened in the case and voiced their concerns in court on the Constitutionality of triple talaq.
Published first in The Invisible Lawyer.
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